Christie Blatchford: Government has allowed police to operate in vacuum of accountability with aboriginal protesters

Government allows police to operate in vacuum of accountability over aboriginals

“The lack of accountability for the overall policy of the OPP with respect to Caledonia is inexcusable in a country and province that is simultaneously committed both to enforcing the rule of law and to reaching just land settlements with Indigenous people.”— University of Western Ontario political science professor Andrew Sancton

In the news business, you often feel thick as a plank, or at least I do.

But I wrote an entire book about the breakdown of law-and-order in Caledonia, Ont., and yet, until Andrew Sancton’s note of this week, I’d managed to miss perhaps the most important lesson that Sidney Linden, the judge who headed the lengthy inquiry into the police-aboriginal standoff at Ipperwash in 1995, had to teach.

The quote above is from a piece Professor Sancton wrote and was published last year in the journal Canadian Public Administration.

The piece is called “Democratic policing”: Lessons from Ipperwash and Caledonia, and the quotes are around the first two words because it was Justice Linden who to virtually no public attention and sadly to little effect in government, recommended this model of policing.

Justice Linden, of course, was concerned with the events at Ipperwash Provincial Park in 1995, where a native protester named Dudley George was fatally shot when the Ontario Provincial Police moved in, and in general with issues of how police in Ontario handle aboriginal blockades.

A more intelligent and sympathetic view of aboriginal and Canadian history would be hard to find.

And the Linden report, and the hearings which led to it and which were still going on when protesters from Six Nations first moved onto a development site called Douglas Creek Estates in 2006, got scads of media attention.

But in the black-and-white way that comes naturally to the news business, the Ipperwash dispute was reduced to this: The Mike Harris Conservative government, impatient for action, had inappropriately influenced the OPP, with tragedy the result; Ontario must be vigilant to see that such a thing never happened again; thus police “independence” must be ferociously guarded.

Yet Justice Linden specifically found that though certainly mistakes had been made at Ipperwash, the Harris government had not unduly influenced the OPP, or, as Professor Sancton put it, “the government was perfectly entitled to do so as long as it followed procedures that were clear, transparent and respected established lines of authority.”

That’s because there’s a proper place for government to set policies for the police, just as it does in other spheres, and that includes decisions, as the professor wrote, on “how the police are to respond to specific challenges in the real world, such as protests and occupations.”

As Mr. Sancton pointed out, while Justice Linden agrees that in “the core area of law enforcement (who should be investigated, arrested and/or charged)” police need to be independent of government direction, that doesn’t mean the minister responsible for policing should adopt a “hands off” posture.

In fact, as Mr. Sancton noted – and he’s the first person I’ve read to say it – Justice Linden did not recommend the “police independence” model, but rather the “democratic policing” one. The judge’s analysis, Mr. Sancton said, “effectively repudiates the hands-off position taken by the [Dalton] McGuinty government concerning Caledonia.”

While most of the witnesses who either appeared before the judge or have spoken publicly — including the premier, various government ministers and senior OPP leaders — duly parroted “the nostrum that government ministers have no right to interfere in police ‘operational’ decisions,” Justice Linden didn’t accept this view of police independence.

The difficulty, Mr. Sancton concluded, is that this model doesn’t give sufficient authority to the responsible minister — or accountability.

That was Justice Linden’s end game — not that government policy shouldn’t inform the police, but rather that the government be transparent about the policy and answerable to Ontarians for it, and for any consequences.

As Mr. Sancton wrote, the judge’s real concern was not to insulate the police from government control but to protect them from “informal influence by an unspecified array of governmental operatives” ranging from the premier on down — the very thing that happened at Ipperwash.

What Justice Linden’s recommendations in this regard emphasize are focusing “responsibility for the OPP on a single minister,” making him or her answerable for policing policy, and seeing that the minister’s directives are fully public.

As Professor Sancton said, had the Linden scheme been in place when the Caledonia occupation began, “the minister responsible for the OPP would have had a decision to make: does he issue a policy directive to the OPP or not?” If the answer was yes, he would have had to make the directive public; if the answer was no, “the minister would have had to have been publicly responsible for not having issued a policy.”

(I emphasize here that none of us — the judge, the professor or me the plank — is talking about the government telling the police whom to arrest.)

In the end, nothing has changed, despite the Linden report. Mr. Sancton said that undoubtedly, such a vacuum of accountability suits some. They might prefer the OPP commissioners be left to do whatever they wish, as indeed has happened, with OPP boss Chris Lewis recently deciding that during an Idle No More rail blockade last weekend, his officers would not assist the local sheriff in enforcing a court injunction, and being unrepentant when criticized by the judge for the force’s “passivity.”

At the very minimum, Mr. Sancton said, commissioners should be “required to defend their own policy decisions publicly.”

Finally, the professor concluded in his article, “Commanders in the Canadian Armed Forces are given considerable leeway by their political masters in determining how personnel are trained and deployed, especially when they are actually in a field of conflict.

”But no one suggests that they should be given a general mandate to ‘keep Canada secure’ and then be left alone to decide what to do.”

That’s precisely the situation in Ontario – where native chiefs are threatening more rail and road blockades next week – right now: The government mantra is hands off the police, the police are accountable to no one, including the courts, and no one is answerable to the people.